Lecture 1 Introduction to Business Law and the Australian Legal System

5/19/2018 Lecture 1 Introduction to Business Law and the Australian Legal System

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BUSL250

Welcome to BusinessLaw!


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BUSL250 Student Information

Course Convenor and Lecturer

Dr Verity Greenwood

Office: E4A Room 310

Telephone: 98507283

Email: [email protected] Hours: 3.00-5.00pm Monday in office

Deputy Convenor and Lecturer

Andrew Dahdal

Office: E4A Room 317

Telephone : 98508615

Email: [email protected]

Consultation Hours: 11.00-1.00pm Thursday in office

Verity Greenwood, Session 2, 2013
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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BUSL250 Information cont Prescribed Textbook (required): Business Law BUSL250 compiled by

Dr Verity Greenwood and Julian Dight-custom book, Pearson

Publishers,2013 plus ebookand access to MyLawLab.

BUSL250 Email : [email protected]

All email correspondence must be sent to this email. If highly personalor

confidential then contact the convenor personally.

Unit website http:/ilearn.mq.edu.au/

-BUSL250 Unit Guide

- Lecture slides

- ilecture

- Online Quizzes

- Announcements-

mailto:[email protected]://learn.mq.edu.au/http://learn.mq.edu.au/http://learn.mq.edu.au/http://learn.mq.edu.au/http://learn.mq.edu.au/http://learn.mq.edu.au/http://learn.mq.edu.au/http://learn.mq.edu.au/http://learn.mq.edu.au/http://learn.mq.edu.au/mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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How does Business Law affectour everyday life?


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Defining the law

Law is: the set of rules,

made by the state, and

enforceable by prosecutionor litigation.

statewhen state in lower case-means governmentgenerally

Stateif capitalised it means state within federatione.g NSW



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The purpose of law

Law: resolves disputes,

maintains social order, preserves and enforces community values,

protects the disadvantaged,

stabilises the economy, and prevents the misuse of power.



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Characteristics of a legal system

Accessibility

Certainty

FlexibilityFairness Law's

ideals

Legal system

Characteristic

s



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A Classification of Law- Criminal and

Civil

CIVIL

Examples of laws

relevant to business

Contract Law

Torts

Property Law

CRIMINAL

Examples of

business crimesExtortion

Larceny

Arson

Stealing

Cyber attacks

On the balance of

probabilities

Beyond reasonable

doubt

Common Law



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Inherited legal system in Australia

Nowusually

work

together



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Common Law

Common law is the law created by the reported decisions of

judges

Common law is also known as:

case law;

precedent;

unenacted law;

unwritten law.



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Common Law

comprehensive system;

remedies not discretionary;

rights are enforceable at any time subject to statute of

limitations;

valid against the whole world;



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Statute Law

Statute law are the laws created by State and

Federal parliaments.

Statute law is also known as:

legislation;

Acts of Parliament;

enacted law.



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Statute Law

Statute law also includes laws made by other

government bodies.

This is known as delegated legislation and takes

the form of:

by-laws;

orders;

rules and regulations.



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Common Law v. Statute Law

Today, statute law is the most important source of

law as the great majority of law comes from the

parliaments.

Statute law overrules common lawin the event

of a clash between the two.



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Equity

Equity developed as a result of the growing inflexibility andrigidity of the common law.

Equity implies fairness and justice in the law.

Not comprehensive.

Remedies are discretionary.

Require prompt attention.

Valid only against those specified in court.Follows common law; it supplements it.

Only against individuals not property.

No application in criminal law. Verity Greenwood, Session 2, 2013


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Equity

Equitable remedies include:

Injunctiona court order directing a person to

stop doing something; and

Specific performancea court order directing

a person to carry out an obligation.



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Public v. Private Law

Another classification of law is into public and private

law.

Public lawthe organisation of government and itsrelationship with the people.

Private lawdeals with disputes over rights and

obligations between people or organisations.



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Categories of law



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The changing law

The law changes regularly because of:

political change,

the need to fix problems with the law, changing community values,

pressure from lobby groups, and

changing technology.



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The six key characteristics of the

Australian legal system



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MonarchyThe head of state is the Queen

Const i tu t ionalShe holds that position pursuant to

underlying constitutional arrangements

rather than by force of arms

Constitutional Monarchy



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Key characteristics

Liberal democracy:

Laws are made by, and executive government consists of,

elected representatives who exercise their power subject to

the rule of law and to the various Federal and State

constitutions.

Common law legal system:

Our legal system is based on the British legal system, and

can be contrasted with other forms of legal system such as

the civil law legal system.

Law that has evolved through judicial decision and practice



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So how did common law

become a source of law inAustralia?



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History of the system

For tens of thousands of years prior to British

settlement there was in existence in Australia a

sophisticated and effective legal system: the

Indigenous Australian legal system.

Unfortunately, the British did not recognise or

acknowledge the Indigenous Australian legalsystem upon their arrival in the 1700s.



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Reception of English Law

Australia was declared to be terra nu l l iusat the time thecolony was established.

Australia was deemed to have been settledby Britainrather than conquered by Britain or acquired by treaty.

British settlers brought British law with them according tothe doctrine of reception.

CASE: Mabo v Queensland(No 2)(1992) 175 CLR 1

- The High Court acknowledged that Australia had not beenterra nullius and that common law recognises a form of native

title

to land.



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Origins of Australian Law

Customary law

The Mabodecision related specifically to Aboriginal

land rights.

In Walker v. New South Wales (1994) the High Court

discussed the validity of Aboriginal customary law

relating to criminal cases. The court decided thatcustomary law had been extinguished by the

criminal legislation passed by the states and

territories.



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Charting the history of Colonial legal systems

Date Event Effect

1787 First Charter of Justice Established colonial courts with civil & criminal jurisdiction

1788 First colonists arrived inNSW

Carried with them the English law

1814 Second Charter of

Justice

Established Supreme Court - civil jurisdiction & sub. structure

1823 New South Wales Act

1923 (Imp) and ThirdCharter of Justice

Established NSW as full colony

established comprehensive court system established Legislative Council appointed by the Crown

1828 Australian Courts Act

1828 (Imp)

Increased size of Legislative Council

Provided laws of England in force 1828 had effect in NSWonly if there were particular provisions to that effect

1850 AustraliansConstitutions Act (No 2)1855 (Imp)

Created colony of Victoria and allowed colonies to establishparliaments with two houses (bicameral)

1855 NSW Constitution Act

1855 (Imp)

Changed constitutional structure to create a bicameral NSW

parliament with representatives and responsible government

1865 Colonial Laws ValidityAct 1865 (Imp)

Confirmed ability of colonial legislatures to amend own

constitutions; Declared colonial parliaments have no power



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The Australian Constitution

1900

- The British Parliament passed theAustralian Constitution Act 1900(Imp)The Australian Constitution united the colonies in a federat ion

The Commonwealth of Australia came into existence on 1 January

1901.

Each of the colonies, now States, gave up certain powers, rights andduties to the new Federal government, and at the same time retainedtheir individual identities and substantial legislative authority.

Today, Federal, State and Territory governments in Australia are freefrom interference by the British Parliament.

Federation involves a division of powers between the States and theCommonwealth



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Separation of Powers

In the Constitution, the functions of government areallocated to different institutions:

- Legislat ivefunctions : Laws are madeby aparliament

- Execut ivefunctions :administeredby an ExecutiveCouncil or Governor in Council

- Judic ia lfunctions :interpretedand applied toparticular cases by a court system

Under the Westminster system the separation of powers isnot absolute



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The three arms of government


COMMONWEALTH AND STATE POWERS


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COMMONWEALTH AND STATE POWERS

Commonwealth

State

Concurrent powers(Shared powers)

Exclusive powers(Commonwealth only)

Residual powers(State only)

Examples

s.52: Exclusive powers of

Parliament

s.90: Customs, excise and bountiess.92: Free trade between the States

s.105: Taking over state public debts

s.114: Military forces

s.115: Currency

s.122: Government of federal

territories

Examples under Section

51

Insurance

BankingIndustrial Relations

Examples

Education

Local Government

Transport

Exclusive, concurrent and residual powers


COMMONWEALTH CONSTITUTION


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COMMONWEALTHCONSTITUTION

Commonwealth Constitution

Parliament hasLegislative power

Cabinet hasExecutive power The Courts haveJudicial power

The Ministry High Court

House of

Representatives

SenateOther federal courts

Doctrine of separation of powers


STRUCTURE OF THE AUSTRALIAN


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STRUCTURE OF THE AUSTRALIANCONSTITUTION

33Verity Greenwood, Session 2, 2013

FEDERAL / STATE RELATIONS


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FEDERAL / STATE RELATIONS

If the Federal Parliament has not legislated inrelation to any of the matters listed in s 51, thenthat matter remains within the regulatory authorityof the States.

If a State parliament has made a law in relation toone of these matters, and the Federal Parliamentmakes a law in relation to the same matter, then s109 of the Australian Constitution provides that,the latter shall prevail, and the former shall, to theextent of the inconsistency, be invalid.

eg.Wall is v Downard-Pick ford (North Queens land) Pty

Ltd (1994) 68 ALJR 395


THE STRUCTURE OF PARLIAMENT


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THE STRUCTURE OF PARLIAMENT



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Coming up next..

Australian Legal

SystemChapter 3

& Chapter 4

(pp.94-102)

Lecture 1 Introduction to Business Law and the Australian Legal System

Documents

Transcript of Lecture 1 Introduction to Business Law and the Australian Legal System